White and Steele, P.C.’s attorneys, including Keith Olivera, John Lebsack, Rachel Jennings, and Dmitry Vilner, are upholding the firm’s tradition of pro bono work by volunteering their time at Centro San Juan Diego’s Legal Nights. These Legal Nights, which are sponsored by the Colorado Lawyers Committee, provide an opportunity for individuals from traditionally under-served communities to meet one-on-one with an attorney and obtain free counseling or information about a legal issue affecting their lives. White and Steele looks forward to continuing to help the community at future Legal Nights.
For more information, please feel free to contact any of our participating attorneys or Centro San Juan Diego.
John Craver and Dmitry Vilner recently won a motion to dismiss in federal court for their client, a homeless shelter. The plaintiff, a prisoner who was on parole, alleged that his parole officers and the shelter agreed to force him to participate in Christian educational programming. Even assuming the plaintiff’s allegations were true (they were not), John and Dmitry persuaded the court that the shelter was not a “state actor,” as that term is defined under federal law. Therefore, the plaintiff could not sue the shelter for alleged violations of his constitutional rights.
Fritz Klann and Dmitry Vilner recently won partial summary judgment for their client, a Colorado roofing company, in a case that raised important issues under the economic loss rule and the Homeowners Protection Act, section 13-20-806(7), C.R.S. (the “HPA”). The client contracted to install a roof on a home in Cherry Hills Village. When the client was paid only about 25% of the contract price, it placed a mechanic’s lien on the home and sued for breach of contract and to foreclose on the lien. The defendants were a trust that purportedly owned the home, as well as a husband and wife who sometimes lived in the home (the husband had signed the roofing contract with the client). The husband counterclaimed against the client for breach of contract, breach of warranty, fraud, and negligence. Fritz and Dmitry successfully argued that the husband’s counterclaim for fraud was barred by the economic loss rule, and that the breach of contract counterclaim was barred because the client had substantially performed and because the husband was not justified in failing to pay. Finally, Fritz and Dmitry successfully argued that the husband’s only remedy under the contract was to seek repairs for demonstrated leakage. Although the husband argued that this limitation was void under the HPA, the court disagreed and found that the husband could not take advantage of the HPA because the husband admitted he was not an “owner” of the home.
Jim Dieterich and Dmitry Vilner obtained summary judgment for White and Steele’s client, a truck driver, by successfully arguing that the claims were barred by the statute of limitations. The plaintiff had rented a car and turned over the wheel to his wife late at night while driving with his family across country. While traveling in a construction zone on I-70, the wife crashed the car into a tractor-trailer driven by our client. The wife was killed, and the other occupants were injured.
Plaintiff initially filed a lawsuit naming our truck driver client and others as defendants. However, plaintiff failed to timely serve the truck driver, and the court dismissed our client from the case without prejudice. The plaintiff’s case was then consolidated with another case naming the same defendants, filed by the plaintiff’s daughter and grandson in a separate county. Our truck driver client had been properly served in this other case. When the plaintiff moved to amend his complaint in the new case to re-add our client as a party, we argued that the 3-year statute of limitations prevented the plaintiff from doing so. The court agreed that the amended complaint did not “relate back” to the original complaint, that the statute of limitations was not tolled, and the case against our client was dismissed.
Jim Meseck and Dmitry Vilner recently won a motion to dismiss in a premises liability case. Jim and Dmitry’s clients were listing agents retained by a couple wishing to sell their home. The plaintiff, herself a real estate agent, alleged that she went to the home to “preview” it for a buyer. While previewing the home, the plaintiff allegedly fell through some unsecured floorboards in a bathroom and injured herself. The plaintiff sued not just the homeowners, but also Jim and Dmitry’s clients.
Jim and Dmitry successfully argued that their clients did not, as a matter of law, owe the plaintiff a duty of care either under the Colorado Premises Liability Act, section 13-21-115, C.R.S. 2017, or under a theory of common law negligence. The court agreed with Jim and Dmitry’s analysis, held that the plaintiff did not state a plausible claim for relief, and granted the motion to dismiss. This is a significant victory for real estate agents in Colorado.
Jim Dieterich and Dmitry Vilner recently won summary judgment on behalf of White and Steele’s client, a 24/7 HVAC service company. A company employee had taken the keys to one of the company’s trucks without permission (permission was disputed), and used the truck to move his furniture during a holiday. The employee then got into an accident with the plaintiffs. The plaintiffs sued the employee and the company, arguing that the company owed them a duty to secure the truck keys from its employees during off-duty hours.
We successfully argued that our client, the HVAC company, did not owe the plaintiffs a duty of care to secure the keys to the truck from its own employee. The court agreed, holding that due to the employee’s clean driving record and the absence of any similar incident at the company’s office in Colorado, it was not foreseeable that its employee would operate the truck negligently, even if he took it without permission. Therefore, summary judgment was granted.
Thank you to Cathy Endicott, Dmitry Vilner, Karen Caston, Susan Portillos, John Craver and Dave Nowak for their volunteering time in June! It was a very busy night and the recent post office pick up event made for a lot of extra canned goods going out into the market place and the need for a ton of sorting. Dave, Dmitry and Karen were sorting in the warehouse. Dave was diligent about checking ingredients on each product to ensure each was healthy as Metro Caring does not distribute items with too much sugar. John did a lot of stocking of pantry shelves and filling the shelves in the refrigerator. Cathy and Susan worked in the marketplace as customer service and keeping shelves neat. People were loading their carts like crazy!
We would love to see you at a White and Steele Metro Caring night - the last Tuesday of each month!
Keith Olivera recently obtained a defense verdict for his client, an insurance agent who sold a Commercial General Liability policy to the plaintiff, a construction company. The plaintiff was audited by its insurance company, and the plaintiff was required to pay an additional premium. However, the plaintiff never paid the premium, so its policy was cancelled by its insurance company. The plaintiff alleged that it went a month without insurance because it was never notified of the cancellation. Having no insurance, the plaintiff alleged it lost hundreds of thousands of dollars in business opportunities. So, the plaintiff sued the insurance company, an intermediate insurance broker, and Keith’s client, the agent. The plaintiff argued that the “agency billing” relationship between the three insurance entities created a duty of care towards it, and that the relationship violated the Colorado Consumer Protection Act (the CCPA).
Before trial, Keith Olivera and Dmitry Vilner filed a summary judgment motion that disposed of most of the plaintiff’s claims, including claims based on the alleged duty of care and violation of the CCPA. On the claim remaining for trial, Keith successfully argued to the jury that the plaintiff could not prove his client made an intentional misrepresentation of material fact regarding the audit process or the cancellation of the insurance policy.
Jim Dieterich and Dmitry Vilner recently obtained a complete dismissal of all claims against their client in federal court. In an undoubtedly tragic case, the plaintiff was a motorist driving down I-76 when his minivan collided with a runaway horse. The plaintiff’s wife was killed in the accident. The horse’s owner had been riding the horse in a ditch along the highway when the horse bucked him and ran off. After the accident, the plaintiff sued not just the horse’s owner, but also Jim and Dmitry’s client, the landlord from whom the owner rented a living space. Jim and Dmitry successfully argued that their client could not be held legally responsible for the accident because it did not owe a duty of care to third parties, like the plaintiff, for activities conducted by its tenant off of the property.
